Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of August 4, 2025. This was a light week.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of August 4, 2025. This was a light week.
In Baker v. Van Dolder's Home Team Inc., the Court granted leave to intervene to the Ontario Chamber of Commerce in an appeal concerning the enforceability of an employment termination clause under the Employment Standards Act, 2000. Although intervention in private disputes typically involves a more stringent standard, the Court applied a more relaxed standard in this case because the appeal raised broader public policy issues. To avoid the appearance of imbalance and duplicative submissions, leave was only granted to one intervener.
In Universalcare Canada Inc. v. Gusciglio, the Court allowed an appeal from the dismissal of a defamation action under the anti-SLAPP provisions of the Courts of Justice Act. The public interest in allowing the appellants to pursue the defamation action in this case outweighed the respondent's interest in tweeting negatively about the standard of care the appellants provide to elderly people under their care.
Macpherson v. Wyszatko Estate was an appeal from an order giving directions in a fact-driven estates matter. One aspect of the appeal was allowed, with the appeal on the remaining issues being dismissed.
Wishing everyone an enjoyable weekend.
Table of Contents
Civil Decisions
Baker v. Van Dolder's Home Team Inc, 2025 ONCA 578
Keywords: Interveners, Friends of the Court, Employment Standards Act, 2000, S.O. 2000, c. 41, Rules of Civil Procedure, rr. 13.02 and 13.03(2), Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), Caruso v. Law Society of Ontario, 2025 ONCA 270, Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, Roden v. Toronto Humane Society (2005), 259 D.L.R. (4th) 89 (Ont. C.A.), Egan v. Harbour Air Seaplanes LLP, 2024 BCCA 222, Dufault v. Ignace (Township), 2024 ONCA 915, Fair Voting BC v. Canada (Attorney General), 2024 ONCA 619, Right to Life Association of Toronto and Area v. Canada (Employment, Workforce and Labour), 2022 FCA 67
Universalcare Canada Inc. v. Gusciglio, 2025 ONCA 583
Keywords: Torts, Defamation, Libel, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, Benchwood Builders, Inc. v. Prescott, 2025 ONCA 171, 40 Days for Life v. Dietrich, 2024 ONCA 599, Hansman v. Neufeld, 2023 SCC 14, Hill v. Church of Scientology,[1995] 2 SCR 1130, Mondal v. Kirkconnell, 2023 ONCA 523, 1704604 On ario Ltd. v. Pointes Protection Association, 2020 SCC 22, Marcellin v. London (Police Services Board), 2024 ONCA 468
Macpherson v. Wyszatko Estate, 2025 ONCA 576
Keywords: Wills and Estates, Occupancy Rent, Civil Procedure, Applications for Directions, Costs, Rules of Civil Procedure, r. 49.10(2), Housen v. Nikolaisen, 2002 SCC 33, 100 Bloor Street West Corporation v. Barry's Bootcamp Canada Inc., 2025 ONCA 447
Short Civil Decisions
Bongard v. Bullen, 2025 ONCA 580
Keywords: Civil Procedure, Appeals, Leave to Appeal, Extension of Time, Self-Represented Litigants, Costs, Bongard v. Bullen, 2025 ONCA 473, Bongard v Bullen, 2024 ONSC 4623
Heegsma v. Hamilton (City), 2025, ONCA 588
Keywords: Civil Procedure, Appeals, Case Management, Directions, Canadian Canadian Charter of Rights and Freedoms, Heegsma v. Hamilton (City), 2025 ONCA 554,< em>Heegsma v. Hamilton (City), 2024 ONSC 7154
CIVIL DECISIONS
Baker v. Van Dolder's Home Team Inc., 2025 ONCA 578
[Monahan J.A.]
Counsel:
B. Kain, for the appellant
M. Chilvers, for the respondent
Keywords: Interveners, Friends of the Court, Employment Standards Act, 2000, S.O. 2000, c. 41, Rules of Civil Procedure, rr. 13.02 and 13.03(2), Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), Caruso v. Law Society of Ontario, 2025 ONCA 270, Jones v. Tsige(2011), 106 O.R. (3d) 721 (C.A.), Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, Roden v. Toronto Humane Society (2005), 259 D.L.R. (4th) 89 (Ont. C.A.), Egan v. Harbour Air Seaplanes LLP, 2024 BCCA 222, Dufault v. Ignace (Township), 2024 ONCA 915, Fair Voting BC v. Canada (Attorney General), 2024 ONCA 619, Right to Life Association of Toronto and Area v. Canada (Employment, Workforce and Labour), 2022 FCA 67
facts:
The Ontario Chamber of Commerce ("OCC") and the Canadian Association of Counsel to Employers ("CACE") (collectively, the "Proposed Interveners") sought leave to intervene as friends of the court in this appeal.
The respondent's contract of employment was terminated by the appellant on a "without cause" basis. The motion judge found that the "without cause" termination provision was unenforceable because it stated, contrary to the Employment Standards Act, 2000, S.O. 2000, c. 41 ("ESA"), that the employer was entitled to terminate employment "at any time." The "with cause" provision was also found to be unenforceable, as it (i) provided for termination "at any time" for just cause, and (ii) failed to explain the difference between the less stringent "just cause" standard and the higher "wilful misconduct" standard under the ESA. The appellant's motion to dismiss the respondent's wrongful dismissal action was dismissed.
The Proposed Interveners submitted that the appeal raises issues that transcend the parties' interests and engage questions of public importance. They asserted a real, substantial and identifiable interest in the appeal and submitted that they can offer a helpful perspective to the court. The appellant consented to their intervention.
The respondent opposed the motions, submitting that the test for leave to intervene should be applied stringently given the appeal concerns a private contractual dispute. He further argued that the Proposed Interveners' submissions were duplicative of the appellant's arguments; that their participation would increase the complexity and cost of the appeal; and that permitting two interveners aligned with the employer's position risked creating the appearance of imbalance.
The test for leave to intervene involves the Court considering (1) the nature of the case; (2) the issues involved; and (3) the likelihood that the proposed intervener will make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties (Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd.; Caruso v. Law Society of Ontario).
issues:
1. What standard should be applied in assessing the motions to intervene?
2. Should the interveners be granted leave to intervene?
holding:
Motion granted.
reasoning:
1. The Court held that a more relaxed standard should apply in assessing the motions to intervene given that the appeal raises broader implications that transcend the interests of the immediate parties and engage matters of public policy.
Where the litigation in which the intervention is sought is a private dispute, the standard to be met by the proposed intervener is normally more onerous: Jones v. Tsige. However, the Court reaffirmed that this threshold may be softened where the issues raised extend beyond the particular interests of the litigants and raise questions of broader significance (Jones, at para. 23; Caruso v. Law Society of Ontario).
The appeal raises such broader implications. As noted by the Supreme Court in Wallace v. United Grain Growers Ltd., employers may dismiss employees on reasonable notice, absent express contractual provisions to the contrary. Termination provisions permitting dismissal "at any time" are commonly used in employment contracts and have been interpreted as compliant with employment standards legislation. However, the Court recently observed in Dufault v. Ignace (Township), that whether such language complies with the ESA remains an open question.
2. Yes, but only one intervener was necessary.
The Court decided that only one of the two Proposed Interveners should be granted leave to intervene and since the OCC has the more substantial and identifiable interest and expertise in relation to Ontario, the Court was of that view that it will be in a better position to assist the Court in understanding the implications of the appeal for Ontario employers and employees.
The Court's primary concern was whether granting leave to both Proposed Interveners would give rise to an appearance of unfairness. Although the alignment of a proposed intervener's position with one of the parties is not a bar to intervention (Jones v. Tsige), allowing two large organizations to intervene on the employer's side in a private dispute involving an individual respondent with limited resources risked creating the perception of imbalance. Moreover, while the Proposed Interveners' submissions were distinct from those of the appellant, the Court noted that they overlapped to a significant extent with each other. Multiple interveners advancing overlapping submissions on one side of a dispute can imperil the fairness of the hearing (Fair Voting BC v. Canada (Attorney General).
For those reasons, the Court granted leave only to the OCC on terms.
Universalcare Canada Inc. v. Gusciglio, 2025 ONCA 583
[Miller, Monahan and Dawe JJ.A.]
Counsel:
M. Prosia, for the appellants
J.M. Siskind and S. Jamshidimoghadam, for the respondent
Keywords: Torts, Defamation, Libel, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, Benchwood Builders, Inc. v. Prescott, 2025 ONCA 171, 40 Days for Life v. Dietrich, 2024 ONCA 599, Hansman v. Neufeld, 2023 SCC 14, Hill v. Church of Scientology, [1995] 2 SCR 1130, Mondal v. Kirkconnell, 2023 ONCA 523, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Marcellin v. London (Police Services Board), 2024 ONCA 468
facts:
The respondent's mother was a resident at the appellants' managed long-term home. The respondent expressed her dissatisfaction with the appellants' management and staff during her mother's stay, as evidenced by the staff's several complaints about the respondent. Over a three-year period, over 100 anonymous tweets were aimed as personal attacks against the appellants, alleging elder abuse taking place in the long-term home. The appellants believed the respondent to be the author of the tweets, commencing a defamation action against her in December 2019. The respondent brought a motion under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act ("CJA") to dismiss the action.
The motion judge granted the motion and dismissed the action. The respondent established that the proceeding arose from expression that related to a matter of public interest, namelythe topic of elder care in long-term homes. Further, the motion judge concluded that CJA s. 137.1(4)(b) was intended to be robustly screen out lawsuits of this nature. The appellants did not persuade the motion judge of any harm likely suffered or harm they would have suffered from the respondent's tweets. The motion judge was also unconvinced that there was sufficient harm to outweigh the deleterious effect of stifling the respondent's expression on a matter of public interest. The appellants appealed, arguing that the motion judge failed to conduct the necessary analysis that included the necessary balancing required by CJA s. 137.1(4)(b).
issues:
1. Did the motion judge err in her analysis of whether the expressions in question related to a matter of public interest?
2. Did the motion judge err in her analysis of whether there is reason to believe that the defamation claim had merit, and that the appellants had suffered harm?
holding:
Appeal allowed.
reasoning:
1. No.
The Court upheld the motion judge's conclusion that the action
was within the scope of CJA s. 137.1. The defamation action arose
from expressions that indeed related to a matter of public
interest.
2. Yes.
The Court viewed the motion judge's errors in her analysis
under CJA s. 137.1(4) as sufficient grounds to allow the appeal.
Despite the likely intention to filter out abusive claims, the
motion judge's attempted analytical shortcut was overly
restrictive. The Court differed from the motion judge's hasty,
yet reasonable, conclusion that the lawsuit was designed to support
the appellants' staff, address the behaviour of the
respondent's mother at the long-term home, and deter others
from behaving similarly.
The motion judge made the following errors: (i) finding the evidence revealed "little or no harm" from the expression, and (ii) her faulty assumption that the lack of evidence of harm was determinative of the balancing step because she assumed the respondent's expression had value.
At the public interest stage, the motion judge should have merely drawn inferences of likelihood in respect of the existence of harm, its magnitude, and the relevant causal link, rather than insisting that the plaintiff must prove harm or causation. The motion judge's analysis failed to take sufficient account of the alleged harm to the appellant's professional reputation.
The motion judge's second error was her inadequate analysis regarding balancing the public interest. It lacked the preliminary step of assessing whether there were grounds to believe the defamation action had substantial merit and grounds to believe a defence would not succeed. The motion judge could not ascertain the value of the respondent's expression and whether it was motivated by malice because she dispensed with the CJA s. 137.1(4) analysis. This case lacked sufficient clarity for the motion judge to do so. The Court was of the view that not all expressions that address matters of public interest can necessarily be assumed to be of high value. In this case, the public interest in allowing the expression did not outweigh the public interest in permitting the plaintiffs to pursue an action seeking a remedy for alleged harm suffered.
Macpherson v. Wyszatko Estate, 2025 ONCA 576
[Copeland, Wilson and Rahman JJ.A.]
Counsel:
S.S Sands, for the appellants
D.A.S. Mills and A. Subzwari, for the respondent
Keywords: Wills and Estates, Occupancy Rent, Civil Procedure, Applications for Directions, Costs, Rules of Civil Procedure, r. 49.10(2), Housen v. Nikolaisen, 2002 SCC 33, 100 Bloor Street West Corporation v. Barry's Bootcamp Canada Inc., 2025 ONCA 447
facts:
In 1963, N.W. and A.W. bought a piece of property and built two marinas on it, namely Albert's Marina and Sail'er Inn (the "business"). N.W. and A.W. had five children, including J.M. (the respondent on appeal), R.W. (the appellant on appeal), T.W., and I.W. When A.W. died, his will left 50% of his interest in the business to T.W. In 2010, N.W. had a dispute with T.W., and he sued her and his other siblings, except for J.M. In 2011, N.W. executed a will leaving the business to R.W. and divided the residue of her estate in various proportions between her children except for T.W. N.W. died in 2012, and named J.M., R.W., and I.W. as her estate trustees.
In 2014, T.W.'s litigation against N.W. and his siblings settled for $485,000. R.W. took over the business and its operations, registering it in his own name. R.W. asked J.M. and I.W. to pay him $100,000 each so the settlement payments arising from the litigation could be made to T.W., which they did. The money was not repaid to J.M. and there was no agreement on their mother's estate management. Accordingly, J.M. commenced an application for directions on twelve issues. The application judge determined the issues in J.M. 's favour and ordered costs fixed at $104,722.39 payable by R.W. and I.W. to J.M. The application judge ordered that R.W. had to payoccupation rent for running the business on the property owned by N.W.'s estate, and that he was personally liable for the repayment of J.M.'s loan to him.
R.W. and the business appealed, arguing that the application judge made palpable and overriding errors in her determination of the facts, she failed to give proper weight to certain evidence, and that she exercised her discretion improperly and made errors in determining costs. R.W. denied that he was personally liable for the repaying J.M.'s loan and argued that J.M. was not entitled to repayment for the fees she paid to lawyers or the interest she paid on the loan. R.W. further denied that he was responsible for paying occupancy rent for running the business on the property owned by the estate after N.W.'s death until the time of trial. He asked that the matter be sent back for a new hearing and for the costs order to be set aside.
issues:
1. Did the application judge err in her determination of the application for directions?
2. Did the application judge err in ordering costs fixed in the sum of $104,722.39 payable by R.W. and I.W.?
holding:
Appeal allowed, in part.
reasoning:
1. In part.
The Court found that, for the most part, the application judge did
not err in her determination of the application for directions. The
Court noted that the standard of review for findings of fact is
that of palpable and overriding error, and the appellants failed to
identify any errors made by the application judge.
The Court held that R.W.'s appeal amounted to a request for a redetermination of the facts, which is not the function of the Court. The application judge correctly set out the evidence on each issue and explained how she arrived at her conclusions. The application judge correctly noted that J.M. was not a party to T.W.'s litigation and had no obligation to fund the settlement. On the same basis, the application judge correctly found that J.M. was entitled to repayment for the legal fees and pre-judgment interest.
However, the Court held that paragraphs 1 and 2 of the application judge's order had to be varied to reflect that only N.W.'s estate was liable for the repayment of the loan, legal fees and interest, which was consistent with the application judge's reasons. The application judge made a specific finding that J.M.'s loan was to the estate, and as a result, the Court found that R.W. was not personally liable to pay the loan, legal fees, and interest to J.M.
The Court found that the application judge made no error in ordering that R.W. was responsible for paying the occupancy rent. It was open to the application judge to order this on the evidence, as she found that he ran the business for his own benefit, not on behalf of the estate, and he did so without the estate's permission and treated the assets as his own. Further, the application judge was not provided with evidence on the proper quantum of rent for the property, and she correctly ordered that R.W. pay $2,000 in rent monthly. The Court held that R.W. must comply with his obligation to pay rent, and the parties were to follow the appraisal procedure set out by the application judge.
2. No.
The Court denied R.W.'s appeal of the application judge's
costs order and held that she made no error in exercising her
discretion or in her reasoning. The Court noted that fixings of
costs is a discretionary function, and trial judges are in the best
position to determine entitlement to costs and the amount. The
Court further held that leave to appeal costs is granted sparingly
and an appellate court will only intervene if the judge made an
error when determining costs or if the amount of costs is
unreasonable or wrong. J.M. was successful and was presumptively
entitled to costs. The application judge correctly considered
R.W.'s offer to settle and gave strong reasons for finding that
it did not comply with r. 49.10(2) of the Rules of Civil Procedure,
and her findings were rooted in the evidence and entitled to
deference. The Court held that R.W. was asking the Court to
determine anew the appropriate amount of costs, and this was not
the Court's function.
SHORT CIVIL DECISIONS
Bongard v Bullen, 2025 ONCA 580
[Copeland, Wilson and Rahman JJ.A]
Counsel:
A. Hamilton, D. Kim, and O. Fils, for the appellant/respondent by way of cross-appeal
R. A. B, acting in person
Keywords: Civil Procedure, Appeals, Leave to Appeal, Extension of Time, Self-Represented Litigants, Costs, Bongard v. Bullen, 2025 ONCA 473, Bongard v Bullen, 2024 ONSC 4623
Heegsma v. Hamilton (City), 2025 ONCA, 588
[Favreau J.A.]
Counsel:
S. Choudhry, for the appellants
S. Crowe and J. Diacur, for the respondent
Keywords: Civil Procedure, Appeals, Case Management, Directions, Canadian Charter of Rights and Freedoms, Heegsma v. Hamilton (City), 2025 ONCA 554, Heegsma v. Hamilton (City), 2024 ONSC 7154
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